# Traylor v. Southern Components Inc

> District Court, W.D. Louisiana · August 1, 2019

URL: https://www.frixlaw.com/law-library/cases/10193117

## Case

- **Court:** District Court, W.D. Louisiana
- **Decided:** August 1, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10193117

## How later opinions describe it (automated extraction)

- finding in an unlawful-termination case that a “jury could find the repeated use of ‘old bitch’ indicates . . . discriminatory motivations”
- holding that evidence of co-workers’ use of “names like ‘old man,’ ‘old fart,’ ‘pops,’ and ‘grandpa”’ does not cteate a hostile environment without additional explanation of the comments’ “nature and context”

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
ERIC JEROME TRAYLOR CIVIL ACTION NO. 18-cv-0775
VERSUS JUDGE FOOTE
SOUTHERN COMPONENTS, INC., ET AL. MAGISTRATE JUDGE HAYES
MEMORANDUM RULING
Before the Court is a motion for summary judgment filed by Defendants Southern
Components, Inc. (“Southern”) and Matt Kral (‘Kral’). [Record Document 20]. For the
reasons given below, the motion is GRANTED, and all claims against Defendants are
DISMISSED WITH PREJUDICE.
I. Background!
Plaintiff Eric Traylor (“Traylor’’), a forty-four-year-old African-American man, applied
for work as a night forklift operator at Southern, a company that produces roof and floor
trusses. [Record Documents 1 at 4, 7 and 20-2 at 1]. After he was hired by Kral, Southern’s
Production Manager, on July 12, 2016, [Record Document 20-2 at 2], Traylor began training
under Britney Wells (“Wells”), an African-American woman and Southern’s senior forklift
operator, [Record Document 20-5 at 3]. Although Wells supervised Traylot’s training, she was
not a manager at Southern and had no authority over hiring or firing. [Record Document 20-
2 at 2]. During this training period, Southern expects new forklift operators to learn the skills
necessaty to handle and load Southern’s specialized products. [Record Document 20-5 at 1—

1 Because Plaintiff has not filed a statement of material facts contesting Defendants’
statement, this Court takes the facts in Defendants’ “Statement of Uncontested Facts,”
[Record Document 20-2], as uncontroverted.

2]. The position for which Traylor was training “requires someone able to handle a large
amount of responsibility and who is able to work independently.” [Record Document 20-2 at
1].
When he applied for his position, Traylor indicated that he was in good physical health
with no medical restrictions and that his only medical condition was asthma; he also provided
Southern with a copy of his military discharge paperwork which indicated “disability” as the
reason for separation. [Record Documents 20-2 at 1-2, 20-3 at 36, and 23-1 at 24]. While
working with Wells, Traylor told her that he could not stand for long periods because “I have
pain in my legs and they well up.” [Record Document 20-3 at 42]. She replied that being able
to stand for long periods was a part of the job. [Jd at 43]. Traylor never requested
accommodations, such as being allowed to sit more frequently, nor did he inform Kral of any
need fot accommodations. [Record Documents 20-3 at 43 and 20-5 at 3]. Traylor was older
than some of the other employees, and Wells told him that he was old. [Record Document
20-3 at 53-54]. Traylor also believes that Wells received preferential treatment because she

was a woman. [Id at 52].
On August 10, 2016, Southern terminated Traylor because he “was not learning at an
acceptable pace and did not exhibit the level of skill, responsibility, and independence
necessaty to believe that he would be able to successfully fulfill the duties of a night forklift
operator.” [Record Document 20-5 at 3]. Traylor believes that his discharge was the result of
racial and age discrimination because he was teplaced by a white man in his forties. [Record
Document 20-3 at 50]. He also believes that his discharge was in retaliation for telling Wells
that he intended to file an EEOC charge because she was not training him appropriately. [/d.

at 56-57]. Kral did not know that Traylor had expressed an intention to file the EEOC charge.
[Record Document 20-5 at 4]. Following his discharge, Traylor filed a charge, and the EEOC
issued a right-to-sue letter on March 19, 2018. [Record Document 20-2 at 3].
Traylor now asserts discriminatory termination claims under the race and gender
discrimination provisions of Title VII, hostile work environment and discriminatory
termination claims under the Age Discrimination in Employment Act (the “ADEA”),
unlawful termination and failure to accommodate claims under the Americans with Disabilities
Act (the “ADA”), and wage discrimination claims under the Equal Pay Act. [Record
Document 1 at 4, 12-13].2 Defendants have moved for summary judgment. [Record
Document 20]. Traylor has filed an opposition, and Defendants have filed a reply, rendering
this matter ripe for decision. [Record Documents 23 and 24].
II. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) directs a court to “grant summary judgment if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”3 Summary judgment is appropriate when the
pleadings, answers to interrogatories, admissions, depositions, and affidavits on file indicate
that there is no genuine issue of material fact and that the moving party is entitled to judgment

2 As discussed below, the Court also concludes that Traylor has raised a retaliation
claim because he was fired after he told Wells that he planned to file an EEOC charge.
3 Rule 56 was amended effective December 1, 2010. Per the comments, the 2010
amendment was intended “to improve the procedures for presenting and deciding summary
judgment motions and to make the procedutes more consistent with those already used in
many courts. The standard for granting summary judgment remains unchanged.” Therefore,
the case law applicable to Rule 56 prior to its amendment remains authoritative, and this Court
will rely on it accordingly.

as a matter of law. Celotexe Corp. v. Catrett, 477 U.S. 317, 322 (1986). When the burden at trial
will rest on the non-moving party, the moving party need not produce evidence to negate the
elements of the non-moving party’s case; rather, it need only point out the absence of
supporting evidence. See zd. at 322-23.
If the movant satisfies its initial burden of showing that there is no genuine dispute of
material fact, the nonmovant must demonstrate that there is, in fact, a genuine issue for trial
by going “beyond the pleadings” and “designat[ing] specific facts” for support. Little v. Liquid
Aur Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citing Celotex, 477 U.S. at 325). “This burden is
not satisfied with some metaphysical doubt as to the material facts,” by conclusory or
unsubstantiated allegations, ot by a mete “scintilla of evidence.” Jd. (internal quotation marks
and citations omitted). However, “[t]he evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1985) (citing Adickes v. S. H. Kress Co., 398 US. 144, 158-59 (1970)). While not
weighing the evidence or evaluating the credibility of witnesses, courts should grant summary
judgment where the critical evidence in support of the nonmovant is so “weak or tenuous”
that it could not support a judgment in the nonmovant’s favor. Armsirong v. City of Dall, 997
F.2d 62, 67 (6th Cir. 1993).
Additionally, Local Rule 56.1 requires the movant to file a statement of material facts
as to which it “contends there is no genuine issue to be tried.” The opposing party must then
set forth a “short and concise statement of the material facts as to which there exists a genuine
issue to be tried.” W.D. La. R. 56.2. All material facts set forth in the movant’s statement “will

be deemed admitted, for purposes of the motion, unless controverted as required by this rule.”
Id.
III. Analysis
A. Claims Against Kral
Traylor has sued Kral in his capacity as a supervisor at Southern. [Record Document 1
at 2]. “[T]itle VII does not permit the imposition of liability upon individuals unless they meet
[Title VII's definition of ‘employer.”’ Grant v. Lone Star Co., 21 F.3d 649, 653 Sth Cir. 1994).
A Title VII “employer” is “a person engaged in an industry affecting commerce who has
fifteen ot more employees .. . and any agent of such a person.” 42 U.S.C. § 2000e(b). Although
the latter phrase could suggest individual liability, the Fifth Circuit has approvingly cited a
Ninth Circuit case that concludes that the “any agent” language “incorporate[s]” respondeat
superior liability into [Title VII.” Grant, 21 F.3d at 653 (citing Miller v. Maxwell’s Int'l Inc., 991
F.2d 583, 587 (9th Cir. 1993)). Because no evidence suggests that Kral personally employs
anyone, he is not liable under Title VII. The same logic also applies to Traylor’s ADEA claims.
See Stults v. Conoco, Inc. 76 F.3d 651, 655 Oth Cir. 1996) (applying Grant to ADEA claims).
Although the Fifth Circuit has not spoken directly on this issue, the “virtually universal
view” is that the employment-disctimination provisions of the ADA do not expose
supervisors to individual liability. Roman-Oliveras v. P.R. Elec. Power Auth., 655 F.3d 43, 52 (1st
Cir. 2011); see Parker v. Benteler Steel Tube Mfg. Corp., No. CV 17-1453, 2018 WL 3685383, at *3
(W.D. La. July 18, 2018) (concluding that the Fifth Circuit would follow the consensus view
of the other circuits), report and recommendation adopted, No. CV 17-1453, 2018 WL 3672744
(W.D. La. Aug. 2, 2018). A Title VII employer is a “petson engaged in an industry affecting

commerce... and any agent of such a person,” 42 U.S.C. § 2000e(b), while an employer under
the ADA is “a person engaged in any industry affecting commerce . . . and any agent of such
petson,” 42 U.S.C. § 12111(5)(A). As the ADA’s definition of employer is identical to Title
VIPs, this Court concludes that Title I of the ADA does not impose individual liability on
supervisors and hence that Kral is not liable for any of Southern’s alleged ADA violations.
Similar consensus is lacking regarding individual liability under the Equal Pay Act.
Some courts hold that individual supervisors are not liable for Equal Pay Act violations, while
others conclude the opposite. Compare Harris v. Harvey, 992 F. Supp. 1012, 1013-14 (N.D. TIL.
1998) with Boykin v. Wells Fargo Bank, N.A., C/A No. 3:18-599, 2018 WL 4999780, at *2 (D.S.C.
Aug. 14, 2018), report and recommendations adopted, 2018 WL. 4962077 (D.S.C. Oct. 12, 2018). In
an unpublished opinion, the Fifth Circuit affirmed a district court’s grant of summary
judgment to an individual supervisor on an Equal Pay Act claim. Souter v. Univ. of Tex. at San
Antonio, 459 F. App’x 506, 511-12 (5th Cir. 2012) (per curiam) (unpublished). The district
court had concluded that the claim against the supervisor “was a remedial redundancy” when
the plaintiff “already had a claim against the [employer] under the Equal Pay Act.” Id at 511
n.4. Because Traylor cannot recover twice for the same alleged act of discrimination, this Court
concludes that Traylor’s Equal Pay Act claim against Kral is also redundant of his claim against
Southern. Therefore, the Court grants summary judgment for Kral on all claims raised against
him under Title VII, the ADEA, the ADA, and the Equal Pay Act.
B. Equal Pay Act Claims
Traylor has alleged a violation of the Equal Pay Act because Wells “went inside the
office and got his wage information and went out and told it to other employees which created

a hostile work environment.” [Record Document 10 at 5]. With a few exceptions not relevant
here, under the Equal Pay Act:
No employer . . . shall discriminate . . . between employees on the basis of sex
by paying wages to employees . . . at a rate less than the rate at which he pays
wages to employees of the opposite sex . . . for equal work on jobs the
performance of which requires equal skill, effort, and responsibility, and which
ate performed under similar working conditions ....
29 U.S.C. § 206(d)(1). A prima facie case under the Equal Pay Act has three elements: (1) the
employer must be subject to the Equal Pay Act; (2) the employee’s work must “require[e] equal
skill, effort, and responsibility under similar working conditions” to that of an opposite-sex
comparator; and (3) the employee must be paid less than the comparator. Chance v. Rice Univ.,
984 F.2d 151, 153 (6th Cir. 1993) (quoting Jones v. Flagship Int'l, 793 F.2d 714, 722-23 (5th Cir.
1986)).
Although his filings are not entirely clear, it appears that Traylor has pointed to Wells
as the appropriate comparatot, as he asserts that she was treated more favorably than he was.
[Record Document 20-2 at 2]. There is no dispute that Wells had more experience with the
company. [Record Document 20-3 at 52-53]. Moreover, Traylor was paid $12.00 per hout,
[Record Document 20-2 at 2], and no summary judgment evidence establishes Wells’s
compensation. Therefore, Traylor has satisfied neither the second nor third prongs of his
ptima facie case, and so this Court must grant summaty judgment to Southern on Traylor’s
Equal Pay Act claim.
C. Title VII Unlawful Termination Claims
Construing Traylor’s pro se complaint and other documents in the record liberally, the
Court concludes that Traylor has asserted that his termination resulted from race and gender

discrimination. [Record Documents 1 at 4 and 20-3 at 51-53]. An employer may not
“discharge any individual . . . because of such individual’s race, color, religion, sex, or national
ofigin.” 42 U.S.C. § 2000e-2(a)(1). Where, as in the instant case, a plaintiff offers only
circumstantial evidence of discrimination, the three-step McDonnell Douglas framework applies.
Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 (th Cir. 2001) (citing McDonnell Douglas Corp.
v. Green, 792, 802 (1973)). To survive summary judgment within that framework, a plaintiff
must first make out a prima facie case. Manning v. Chevron Chem. Co., 332 F.3d 874, 881 (5th
Cir. 2003). To do so, a Title VII plaintiff must establish that he or she:
(1) is a member of a protected group; (2) was qualified for the position at issue;
(3) was discharged or suffered some adverse employment action by the
employer; and (4) was replaced by someone outside [the] protected group or
was treated less favorably than other similarly situated employees outside the
protected group.
Willis v. Cleco Corp., 749 F.3d 314, 320 (th Cir. 2014) (quoting McCoy v. City of Shreveport, 492
F.3d 551, 556 (5th Cir. 2007) (per curiam)). Once the employee has carried this burden, the
employer must produce a legitimate, non-discriminatory reason for the challenged
employment decision. Haire v. Bd. of Supervisors, 719 F.3d 356, 362-63 (5th Cir. 2013) (citing
Manning, 332 F.3d at 881). This explanation must be “clear and reasonably specific.” Tex. Dept
of Cmty. Affairs v. Burdine, 450 U.S. 248, 258 (1981) (citing Loeb v. Textron, Inc., 600 F.2d 1003,
1011-12 n.5 (5th Cir. 1979)).
If the employer produces such an explanation,
the onus shifts back to the plaintiff to prove either that the defendant’s
atticulated treason is merely a pretext for race discrimination (the pretext
alternative), or that the defendant’s reason, while true, is only one of the reasons
fot its decision, and another “motivating factor” is the plaintiffs protected
characteristic (the mixed-motives alternative).

v. Fort Bend Indep. Sch. Dist., 704 F.3d 344, 347 (5th Cir. 2013) (citing Vaughn v. Woodforest
Bank, 665 F.3d 632, 636 (5th Cir. 2011)). A Title VII plaintiff can demonstrate pretext in two
ways. First, the plaintiff can show that the employert’s “proffered explanation is false or
‘unwotthy of credence.”’ Vaughn, 665 F.3d at 637 (quoting Laxton v. Gap Inc, 333 F.3d 572,
578 (5th Cir. 2003)). An employet’s explanation is false or unworthy of credence when the
“explanation, accurate or not, is [not] ‘the real reason’ for firing” the employee. Jd. (quoting
Laxton, 333 F.3d at 579). Hence, an employer “is allowed to be incorrect in its assessment of
the facts it relies on to justify firing [the plaintiff], but it is not allowed to have any
discriminatory animus . .. in making its decision.” Id at 636 (citing Laxton, 333 F.3d at 579;
Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002)). Second, pretext can be
shown via disparate treatment, that is, by proof that “the employees being compared held the
same job ot tesponsibilities, shared the same supetvisor or had their employment status
determined by the same person, and have essentially comparable violation histories.” Lee □□
Kan. City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009) (citing Wallace, 271 F.3d at 221-22; Okoye
v. Univ. of Tex. Hous. Health Sci. Ctr, 245 F.3d 507, 514 6th Cir. 2001); Barnes v. Yellow Freight
Sys., Inc, 778 F.2d 1096, 1101 (th Cir. 1985)). To survive summaty judgment through the
mixed-motive alternative, a plaintiff “must offer sufficient evidence to create a genuine issue
of material fact that the defendant’s reason, while true, is only one of the reasons for its
conduct and that another motivating factor was the plaintiff's protected characteristic.” Turner
v. Baylor Richardson Med. Ctr., 476 F.3d 337, 347 (th Cir. 2007) (citing Rachid v. Jack In the Box,

Ine., 376 F.3d 305, 310 (5th Cir. 2004), abrogated in part by Gross v. PBL Fin. Servs., Inc., 557 US.
167 (2009)).4
Traylor alleges that he was fired because he is black and because he is a man. [Record
Documents 1 at 2 and 20-3 at 39]. He has failed to make out a prima facie case for
discriminatory termination on the basis of gender because he was replaced by another man
rather than by a woman. [Record Document 20-3 at 51]. Traylor also asserts that he was treated
less favorably than Wells. [Jd at 52]. To the extent that any less favorable treatment rose to
the level of an adverse employment action, Traylor’s claim fails because Wells is not similarly
situated. [Id. at 52-53]. She had “extensive experience and . . . had trained numerous other
forklift operators during her tenure as an employee of Southern,” while he was still a trainee
at the company. [Record Document 20-5 at 3].
Turning to the issue of racial discrimination, this Court finds that Traylor has
established a prima facie case. He is African American. Although Southern ultimately found
that Traylor was unable to handle the demands of his position, he at least met minimum
qualifications as he had some training in heavy equipment operations. [Record Document 20-
4 at 6]. He was fired, which is clearly an adverse employment action. [Record Document 20-2
at 2]. As his replacement was white, Traylor was replaced by someone outside of his protected
class. [Record Document 20-3 at 51]. However, Southern has explained its decision to

4 Rachid is no longer good law in the ADEA context because the Supreme Court has
held that mixed motives do not violate the ADEA. See Gross, 557 U.S. at 169. Nevertheless,
the Fifth Circuit continues to apply Rachid’s presentation of the mixed-motive method of proof
to cases brought under antidiscrimination statutes where mixed-motive theories are
cognizable. See, eg, EEOC v. LHC Grp., Inc, 773 F.3d 688, 702 (5th Cir. 2014) applying
Rachid’s approach to an ADA claim).
10

terminate Traylor—his failure to “exhibit the level of skill, responsibility[,] and independence
necessaty to believe that he would be able to successfully fulfill the duties of a night forklift
operator.” [Record Document 20-5 at 3]. Because poor performance and lack of productivity
ate valid reasons to terminate an employee, see Engelhardt v. Qwest Corp., 918 F.3d 974, 979-80
(8th Cir. 2019); Gibson v. Verizon Servs. Org. Inc., 498 F. App’x 391, 395-96 (5th Cir. 2012) (per
cutiam) (unpublished), Southern’s explanation is legitimate.
Southern has carried its burden of production, and so Traylor must rebut Southern’s
explanation by showing pretext or by showing that race was a motivating factor in the
termination decision. See Autry, 704 F.3d at 347 (citing Vaughn, 665 F.3d at 636). Traylor has
not identified any comparator and so cannot ptoceed to show pretext on the basis of disparate
treatment. Instead, he attempts to prove pretext by suggesting that Kral’s explanation for
terminating him is false because he was performing adequately. [Record Documents 20-3 at
60 and 23 at 3]. “[S]imply disputing the underlying facts of an employer’s decision is not
sufficient to create an issue of pretext.” LeMaire v. La. Dep't of Transp. ¢ Dev., 480 F.3d 383,
391 (5th Cir. 2007) (citing Sandstad, 309 F.3d at 899). Rather, an employee disputing an
employet’s assertion that an employee was fited for poor performance must offer
cottoborating evidence. Ajao v. Bed Bath ¢ Beyond Inc., 265 F. App’x 258, 263 (Sth Cir. 2008)
(pet cutiam) (unpublished) (citing Machinchick v. PB Power, Inc. 398 F.3d 345, 354-55 (5th Cir.
2005), abrogated in part on other grounds by Gross, 557 U.S. 167). Traylor’s only rebuttal evidence
is his testimony that Kral “didn’t have no [sic] reason at all [to fire Traylor] because I didn’t
do anything wrong.” [Record Document 20-3 at 60].5 This self-assessment is insufficient to

5 In his opposition memorandum, Traylor states, “I dispute the claim that I did not
11

show pretext. Likewise, Traylor fails to show that race was a motivating factor in his
termination. His only evidence is that a white man replaced him. While that evidence suffices
to meet one element of the prima facie case, no reasonable jury could conclude from that
evidence alone that race motivated his firing. As a result, this Court concludes that Southern
is entitled to judgment as a matter of law on Traylor’s Title VII claims for discriminatory
termination.
D. ADEA Claims
Although his theories of liability are not entirely clear, mindful of its duty to construe
filings by self-represented litigants “liberally,” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)), this Court concludes that Traylor has
assetted two ADEA claims: a hostile work environment and unlawful termination, [Record
Document 1 at 4, 10].
1. Hostile Work Environment
A hostile work environment can give rise to a claim under the ADEA. Dedio/ v. Best
Chevrolet, Inc., 655 F.3d 435, 441 (th Cir. 2011).

exhibit the level of skill, responsibility, and independence necessary to successfully fulfill the
duties as a night forklift operator because I was not properly trained.” [Record Document 23
at 3]. By this statement, Traylor appears to mean that even if he was underperforming, this
was Wells’s fault. The Coutt cannot consider this statement because it is unsworn and so does
not constitute competent summary judgment evidence. See Johnston v. City of Hous., 14 F.3d
1056, 1060 (5th Cir. 1994) “‘Unsworn pleadings, memoranda or the like ate not, of course,
competent summary judgment evidence.” (quoting Larry v. White, 929 F.2d 206, 211 n.12 (6th
Cir. 1991))). Moreover, even if his performance did result from poor training, an employer
may incortectly assess the facts justifying a termination without violating Title VII. Vaughn,
665 F.3d at 636. At most, Traylor’s statement indicates that Kral incorrectly evaluated Traylor’s
performance by failing to take into account the effectiveness of Wells’s training; the statement
does not warrant the inference that Kral was motivated by racial animus.
12

A plaintiff advances such a claim by establishing that (1) he was over the age of
40; (2) the employee was subjected to harassment, either through words or
actions, based on age; (3) the nature of the harassment was such that it created
an objectively intimidating, hostile, or offensive work environment; and (4)
thete exists some basis for liability on the part of the employer.
Td. (citing Crawford v. Medina Gen. Hosp., 96 F.3d 830, 834-35 (6th Cir. 1996)). In determining
whether a hostile work environment exists, courts must consider the following circumstances:
“the frequency of the discriminatory conduct; its severity; whether it is physically threatening
ot humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.” Ramsey v. Henderson Postmaster Gen., 286 F.3d 264, 268 (5th Cit.
2002) (quoting Walker v. Thompson, 214 F.3d 615, 625 (th Cir. 2000), abrogated on other grounds
by Burlington N. □ Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)). The working environment
must be both “objectively and subjectively offensive, one that a reasonable petson would find
hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher v. City of Boca
Raton, 524 U.S. 775, 787 (1998) (citing Harris v. Forklift Sys., Inc, 510 U.S. 17, 21-22 (1993)).
Traylor fails to establish the third element of his claim. To show that a workplace is
objectively hostile, it must be “permeated with discriminatory intimidation, ridicule, and insult,
that is sufficiently pervasive to alter the conditions of the victim’s employment.” Dedzo/, 655
F.3d at 441 (quoting A/aniz v. Zamora-Quezada, 591 F.3d 761, 771 (5th Cir. 2009)). Mere name
calling may be insufficient when the terms used are not inherently offensive. Cf Russell v.
McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir. 2000) (finding in an unlawful-termination
case that a “jury could find the repeated use of ‘old bitch’ indicates . . . discriminatory
motivations”). For instance, the Fifth Circuit affirmed summaty judgment for the employer
on a hostile work environment claim where the evidence showed that the plaintiffs co-

13

workets called him “names like ‘old man,’ ‘old fart,’ ‘pops,’ and ‘grandpa.”’ Reed v. Neopost
USA, Inc., 701 F.3d 434, 443 (th Cir. 2012). Wells told Traylor “every day” that he was old
and other age-related comments were made by “[o]ne of the guys on the line that came out.”
[Record Document 20-3 at 54]. Summary judgment evidence does not support a conclusion
that vulgar or insulting language was used. There is no suggestion that Traylor was physically
threatened or humiliated. Traylor does not even suggest that Wells’s comments interfered with
his ability to do his job. See Reed, 701 at 443 (affirming summary judgment when the plaintiff
made “the conclusory statement that the comments interfered with his job performance, [but]

... dfid] not indicate ov’). Even if Traylor was subjectively offended, the Court cannot
conclude from the evidence in the record that a reasonable person in Traylot’s position would
find that these comments “permeated” his employment or rendered the environment so
hostile as to undermine his ability to work. Hence, Southern is entitled to summary judgment
on this claim.
2. Unlawful Termination
The ADEA makes it unlawful for an employer “to discharge any individual . . . because
of such individual’s age.” 29 U.S.C. § 623(a)(1). As with Title VII claims, ADEA claims can
be brought with either direct or citcumstantial evidence. Nécholson v. Securitas Sec. Servs. USA,
Inc., 830 F.3d 186, 189 (th Cir. 2016) (citing Jackson v. Cal-W. Packaging Corp., 602 F.3d 374,
377 (5th Cir. 2010)). Traylor has some direct evidence of discriminatory intent in the form of
Wells’s comments about his age. In the direct-evidence context,
[flor comments in the workplace to provide sufficient evidence of
disctimination, they must be 1) related [to the protected class of petsons of
which the plaintiff is a member]; 2) proximate in time to the terminations; 3)

14

made by an individual with authority over the employment decision at issue;
and 4) related to the employment decision at issue.
Aluguster v. Vermilion Par. Sch. Bd., 249 F.3d 400, 405 (th Cir. 2001) Gnternal quotation marks
omitted) (quoting KrysteR v. Univ. of S. Miss., 164 F.3d 251, 256 (5th Cir. 1999). As Wells lacked
the authority to fire Traylor, her comments ate not ditect evidence that he was terminated for
his age.
Turning now to ptoof via citcumstantial evidence, although it is not entirely certain the
McDonnell Douglas framework applies to ADEA claims, the Fifth Circuit has consistently
treated ADEA claims based on circumstantial evidence under that framework, see, ¢.2., Jackson,
602 F.3d at 378 & n.14, and Defendants have argued from that perspective. Under the
McDonnell Douglas approach, a plaintiff must first establish a ptima facie case of discrimination.
Id. at 378 (citing Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (th Cir. 2007)); see McDonnell
Douglas, 411 U.S. at 802-04. Then, the burden shifts to the defendant to produce evidence that
the plaintiff was terminated for a nondiscriminatory reason. Jackson, 602 F.3d at 378. Id. If this
burden is met, the plaintiff must then show that the legitimate reason offered by the defendant
was not its true reason but was instead a pretext for discrimination. Id. “It is at this third stage
that the plaintiff must demonstrate that age was the ‘but-for’ cause of the defendant’s
employment decision, notwithstanding the defendant’s putative non-discriminatory reason for
the decision.” Dubea v. Sch. Bd. of Avoyelles Par. 546 F. App’x 357, 360 (th Cir. 2013) (citing
Reed, 701 F.3d at 439-40).
To set out a prima facie case for discriminatory termination on the basis of age, an
employee must have been: (1) discharged; (2) qualified for the position; 3) within the
protected age group at the time of the discharge; and (4) either replaced by someone younger
15

ot outside the protected class, or otherwise discharged because of age. Philips v. Leggett ¢& Platt,
Inc., 658 F.3d 452, 455 (5th Cir. 2011) (citing Rachid, 376 F.3d at 309). Traylor testified that he

was teplaced by a person named either Anthony or James. [Record Document 20-3 at 50].
Traylor has presented no positive evidence of this petson’s age, claiming both that this person
was in his “forties” and that “I don’t really know his age, to be honest with you. He was an
older guy.” [Id]. It is Traylor’s burden on summary judgment to satisfy all four elements of
the prima facie case. Here, he has not established that his replacement was either younger than
forty or younger than he was. He has also failed to present evidence that he was discharged
because of his age. While vulgarity is not necessarily required to prove that a comment about

an employee’s membership in a protected group demonstrates animus, see, ¢.g., Normand v.
Research Inst. of Am., Inc., 927 F.2d 857, 862-64 (5th Cir. 1991), the comment must be negative
either facially or in context, compare Russell, 235 F.3d at 226 (“[T]he jury could find the repeated
use of ‘old bitch’ indicates . . . discriminatory motivations.”’) with Reed, 701 F.3d at 443 (holding
that evidence of co-workers’ use of “names like ‘old man,’ ‘old fart,’ ‘pops,’ and ‘grandpa”’
does not cteate a hostile environment without additional explanation of the comments’
“nature and context”). Traylor has alleged that Wells once asked him his age and that when he
answered, “she said that dam [sic] you old.” [Record Document 1 at 10]. He has testified that
Wells “told [him] every day that [he] was old.” [Record Document 20-3 at 54]. While these
obsetvations about Traylor’s age were certainly unnecessary, they were not phrased in
inherently offensive terms, and Traylor has not explained how the comments’ context
demonstrates age-based animus. Because Traylor has failed to establish a prima facie case,

16

Southern is entitled to summary judgment on Traylot’s claim that his termination violated the
ADEA.
E. ADA Claims
Traylor brings ADA claims for unlawful discharge and for failure to accommodate his
alleged disabilities. [Record Document 1 at 4].° Title I of the ADA prohibits employers from
discriminating against persons with disabilities. 42 U.S.C. §§ 12111-12117. A disability is a
“physical or mental impaitment that substantially limits one or more major life activities .. . ;
a recotd of such an impairment; or . . . being regarded as having such an impairment.” Id. §
12102(1). Because Congress has instructed courts to construe this definition as broadly as
possible, zd. § 12102(4)(A), the “threshold issue of whether an impairment ‘substantially limits’

a major life activity should not demand extensive analysis,” 29 C-F.R. § 1630.2@)(1) Git). To be
ptotected by the ADA, an employee with a disability must be “qualified,” that is, able to
petform the essential functions of the employment position either with or without
accommodations. 42 U.S.C. § 12111(8). Although courts must give weight to an employet’s
determination that a given job function is essential, id., this “deference is not absolute,” EEOC

v. LHC Grp., Inc., 773 F.3d 688, 698 (Sth Cir. 2014) (citing 29 C-F.R. pt. 1630, app. § 1630.2(n)).
1. Unlawful Termination
An ADA plaintiff alleging wrongful termination with only citcumstantial evidence must
ptoceed under the McDonnell Douglas burden-shifting framework. Id. at 694 (citing see McDonnell

6 Tt is unclear whether Traylor also asserts a hostile work environment claim under the
ADA, but as there is no record evidence of pervasive discriminatory remarks or behavior by
supervisors ot co-workers directed at his alleged disabilities, such a claim would not survive
summaty judgment in any event.
17

Douglas, 411 U.S. at 802; Neely v. PSEG Tex., Ltd. P’ship, 735 F.3d 242, 245 (5th Cir. 2013)).
The prima facie case requires that the employee: (1) be disabled; (2) have been qualified for
the position; and (3) have suffered an adverse employment action on account of that disability.
Id. at 697 (quoting Zenor v. El Paso Healthcare Sys., Lid., 176 F.3d 847, 853 (5th Cir. 1999)). If
the employee successfully establishes a prima facie case, the employer must then articulate a
legitimate, nondiscriminatory reason for the adverse employment action. Id. at 694 (citing
EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 615 (5th Cir. 2009), abrogated in part on other
grounds by LHC Grp., 773 F.3d 688)). If the employer can do so, the burden reverts to the
employee to produce evidence that the employer’s explanation was pretext for unlawful
discrimination or that the employee’s disability was a motivating factor in the employment
decision. Id. at 702 (citing Rachid, 376 F.3d at 312). “Pretext is established ‘either through
evidence of disparate treatment or by showing that the employer’s proffered explanation is
false ot unworthy of credence.” Delaval v. PT ech Drilling Tubulars, LLC, 824 F.3d 476, 480 (5th
Cir. 2016) (quoting Laxton, 333 F.3d at 578). An employee must prove pretext with
“substantial evidence.” Id. (quoting Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 233 (5th
Cir. 2015)).
This Court will assume without deciding that Traylor has established a prima facie case.
Southern has articulated a legitimate reason for terminating him—namely, that he lacked the
independence and skill necessary to be a night forklift operator. [Record Document 20-5 at 3].
The only Southern employee who made any comments or otherwise referenced any of
Traylor’s alleged disabilities was Wells. [Record Document 20-3 at 56]. After Traylor told her
that he could not stand for long periods because his legs would swell, she “basically just said

18

that you couldn’t work around here because you’ve got to stand for long periods.” at 43].
This showing is insufficiently “substantial” to establish that Southern’s view of Traylor’s work
performance was either a ptetext for disability discrimination or that his disability was a
motivating factor in the termination.’ As a result, Southern is entitled to summary judgment
on this claim.
2. Failure to Accommodate
An employet’s failure to accommodate an employee’s disability is an independent
theory of liability under the ADA. Dillard v. City of Austin, 837 F.3d 557, 562 th Cir. 2016)
(citing LHC Grp., 773 F.3d at 703 n.6). To prevail on such a claim, a plaintiff must show: “(1)
the plaintiff is a ‘qualified individual with a disability; (2) the disability and its consequential
limitations were ‘known’ by the covered employer; and (3) the employer failed to make
‘reasonable accommodations’ for such known limitations.” Nee/y, 735 F.3d at 247 (5th Cir.
2013) (quoting Feist v. La. Dep’t of Justice, Office of the Attorney Gen., 740 F.3d 450, 452 (5th Cir.
2013)). A qualified individual is one who is “able to ‘perform the essential functions”’ of the
position “with or without reasonable accommodation.” Credeur v. Louistana ex rel. Office of the
Attorney Gen., 860 F.3d 785, 792 (Sth Cir. 2017) (quoting 42 U.S.C. § 12111(8)). While an
employer must “engage in a good faith interactive process” to identify reasonable
accommodations, Chevron Phillips Chem. Co., 570 F.3d at 621 (citing Cutrera v. Bd. of Supervisors,
429 F.3d 108, 113 (5th Cir. 2005)), in litigation, the employee must propose a reasonable

7 As discussed above, Traylot’s view that he was doing a good job as an employee
without some sort of corroboration is insufficient to demonstrate pretext.
19

accommodation as part of the prima facie case, Rie/ v. Elec. Data Sys. Corp., 99 F.3d 678, 683
(5th Cir. 1996).
Traylor bases his claim on three alleged disabilities: a spine condition, stress fractures,
and glaucoma. [Record Documents 1 at 4 and 20-3 at 41].8 He claims that Southern was aware
of these disabilities because he submitted his DD214, a form issued to armed services
members upon discharge, along with his application. [Record Document 20-3 at 36]. Although
Southern’s employee file does not contain the DD214, [Record Document 20-4], because
Traylor testified that he provided Southern with a copy, [Record Document 20-3 at 36], the
Court must infer that Southern did have access to that form. Nevertheless, the Court cannot
consider the contents of Traylor’s DD214 because he has not authenticated it via affidavit or
declaration. See Johnson v. City of Shelby, 642 F. App’x 380, 383 (5th Cir. 2016) (per curiam);
Elwakin v. Target Media Partners Operating Co., 901 F. Supp. 2d 730, 742 (E.D. La. 2012). And
even if the DD214 were properly before the Coutt, the form only states that Traylor was given
a disability discharge in June 2006. [Record Document 23-1 at 24]. The form does not indicate
what those disabilities were, what his functional limitations were, or whether he was still
disabled in July and August 2016. Traylor’s only evidence that anyone at Southern was aware
of any limitations he might have had is his testimony that he told Wells that he could not stand
for long periods because his legs would swell. [Record Document 20-3 at 42]. He has not
explained how any of the three disabilities on which he bases his claim are related to his legs
nor has he proposed any accommodation that would have allowed him to fulfill the duties of

8 Although Traylor testified that he has “other disabilities,” he also maintained that the
only disabilities for which he is making a claim are the three listed in his complaint. [Record
Document 20-3 at 40-41].
20

a night forklift operator. Therefore, Traylor has failed to carry his burden of proof on the
second and third elements of his failure-to-accommodate claim, and so Southern is entitled to
summary judgment.
F. Retaliation
Although Taylor did not check the box in his complaint stating that he was bringing
an action for retaliation, Traylor testified to an incident he considered retaliatory, [[d at 57—
60], Southern’s memorandum in support of summary judgment addresses this set of facts
under a retaliation rubric, [Record Document 20-1 at 13-14], and Traylor’s opposition
memorandum repeatedly mentions that employment discrimination laws prohibit retaliation,
[Record Document 23 at 1-2]. As Defendants have elected to evaluate a retaliation claim, the
Court will do likewise.
Traylor asserts that Wells was duplicitous:
She was sending me home early saying that [Southern’s management] were
saying for her to do the loading and for me to go home. And the guy? come
[sic] back telling me she was telling them I didn’t know how to load and stuff
like that.
[Record Document 20-3 at 59]. He then claims that on August 9, 2016, he was taken off of
the forklift and directed to train another employee in a different task. [Jd]. A white employee
was then placed on the forklift. iz at 50-51, 59]. Traylor announced to Wells that this was
discrimination and that he intended to file an EEOC charge. [Id]. Kral terminated Traylor’s
employment the next day. [Id at 60]. Kral has affirmed that he never received notice of
Traylor’s intention to file the EEOC charge. [Record Document 20-5 at 4]. It appears that

9 This individual was one of Traylor’s co-workers. [Record Document 20-3 at 58].
21

Traylor bases his retaliation claim on the temporal proximity between his threat to file the
charge and his termination. [Record Document 20-3 at 60].
Title VII, the ADA, and the ADEA all prohibit retaliation against an employee
exercising rights secured by these statutes. 29 U.S.C. § 623(d) (ADEA); 42 U.S.C. § 2000e-3 (a)
(Title VID; 42 U.S.C. § 12203(a) (ADA). Once again, the McDonnell Douglas approach applies
because Traylor has no direct evidence of retaliation.!° See Long v. Eastfield Coll, 88 F.3d 300,
304-05 (5th Cir. 1996) (citing McMillan v. Rust Coll, Inc, 710 F.2d 1112, 1116 (5th Cir. 1983);
McDonnell Douglas, 411 U.S. at 802-04). To make out a prima facie case of retaliation, an
employment-disctimination plaintiff must establish: (1) participation in an activity protected
by the televant statute; (2) an adverse employment action; and (3) a causal connection between
the protected activity and the adverse action. Wooten v. McDonald Transit Assocs., Inc., 788 F.3d
490, 497 (5th Cir. 2015) (citing Holteclaw v. DSC Comme’ns Corp., 255 F.3d 254, 259 (5th Cir.
2001)) (ADEA);" Byers v. Dall. Morning News, Inc., 209 F.3d 419, 427 (th Cir. 2000) (citing
Webb v. Cardiothoracic Surgery Assocs. of N. Tex., 139 F.3d 532, 540 (th Cir. 1998), abrogated in
part on other grounds by Burlington N. ¢» Santa Fe Ry. Co., 548 U.S. 53) (Title VID); Seaman v. CSPH,
Inc., 179 F.3d 297, 301 (5th Cir. 1999) (citing Grizzle v. The Travelers Health Network, 14 P.3d
261 (5th Cir. 1994)) (ADA). Protected activity includes “opposfition to] any act or practice

10 Traylor admits as much in his deposition in which he acknowledges that he only
concluded that he was fired in retaliation because he was fired the day after he threatened to
go to the EEOC. [Record Document 20-3 at 60].
1! Floltzclaw requited a fourth element for the prima facie case—that the employee who
sought reinstatement was qualified for the position. 255 F.3d at 259. In Wooten, the Fifth
Circuit questioned whether that requirement remained good law. 788 F.3d at 497 & n.2.
Because this Court ultimately concludes that Traylor’s retaliation claims fail at the pretext
stage, this Court need not attempt to resolve this issue.
22

made unlawful” under Title VII, the ADA, or the ADEA, as well as making a charge, testifying,
assisting, ot participating “in any manner in an investigation, proceeding, or hearing.” 42
USS.C. § 12203(a) (ADA); see 42 U.S.C. § 2000e-3(a) (Title VIT; 29 U.S.C. § 623(d) (ADEA).
“To satisfy this opposition requirement, [an employee] need only show that she had a
‘reasonable belief that the employer was engaged in unlawful employment practices.”’ Tumer,
476 F.3d at 348 (quoting Byers, 209 F.3d at 428). In an unpublished opinion, the Fifth Circuit
accepted the proposition that announcing an intention to file an EEOC charge is a protected
activity but without much analysis. Love v. Motiva Enters. LLC, 349 F. App’x 900, 905 (5th Cir.
2009) (pet curiam) (unpublished). Substantial persuasive authority at least implicitly accepts
that threats to file such charges are protected when made in good faith. Rumanek v. Indep. Sch.
Mymt., Inc., 619 F. App’x 71, 78 Cir. 2008) (per curiam) (unpublished); Kwong v. Lockheed
Missiles C» Space Co., 203 F.3d 831 (9th Cir. 1999) (memorandum) (unpublished table decision);
Arrhein v. Health Care Serv. Corp., 546 F.3d 854, 859 (7th Cir. 2008); Morals v. Merit Sys. Protection
Bd., 932 F.2d 800, 802-03 (9th Cir. 1991); Hudson v. S. Ductile Casting Corp., 849 F.2d 1372,
1376 (11th Cir. 1988). Based on this persuasive authority and the requirement that an employee
need only have a reasonable belief that the employer has engaged in discrimination, this Court
concludes that expressing a good-faith intention to file an EEOC charge is a protected activity.
The Court rejects Defendants’ contention that “threatening to complain to the EEOC
when being asked to perform new or different job duties is not the type of ‘opposition’ . . .
constituting protected activity under Title VII.” [Record Document 20-1 at 14]. Whether a
change in job duties violates Title VII or another antidiscrimination statute is a complex legal
and factual matter. So long as the employee is not acting in bad faith when announcing an

23

intention to make an EEOC chatge based on conduct that could reasonably be perceived as
discriminatory (even if it ultimately turns out to be innocent), the employee must be protected
from retaliation.
Traylor threatened to file an EEOC charge because he noticed that he had been
temoved from a position for which he was training and a white employee given that task.
[Record Document 20-3 at 50-51, 59]. While assigning different tasks to a black employee and

a white employee may not ultimately violate Title VII (for instance, if the employees have
different skill sets that make one more appropriate for a particular task), an employee is not
necessatily in bad faith for concluding from the fact of differential treatment that unlawful
discrimination has occutted. Hence, by threatening to file an EEOC charge, Traylor engaged
in protected activity.
Because his termination is clearly an adverse employment action, the question is
whether Traylor can establish a causal connection between his announcement to Wells that he
would file an EEOC charge and his termination by Kral the next day. Kral did not know of
Traylot’s threat to approach the EEOC, [Record Document 20-5 at 4], and so Kral cannot
have acted out of a retaliatory motive. However, under Fifth Circuit precedent, cat’s paw
analysis can demonstrate prima facie causation. Zamora v. City of Hous., 798 F.3d 326, 331-32
(5th Cir. 2015). .
Plaintiffs use a cat’s paw theory of liability when they cannot show that the
decisionmaker—the person who took the adverse employment action—
harbored any retaliatory animus. Under this theory, a plaintiff must establish
that the person with a retaliatory motive somehow influenced the
decisionmaker to take the retaliatory action. Put another way, a plaintiff must
show that the person with retaliatory animus used the decisionmaker to bring
about the intended retaliatory action.

24

Td. at 331.
Although it is not certain that Traylor has produced sufficient evidence to proceed
under a cat’s paw theory, this Court will assume without deciding that he has done so and
proceed with the remaining analysis. Traylot’s only evidence that his threatened charge caused
Kral to terminate him is the fact that he was terminated the day after he told Wells that he
would file the discrimination charge. [Record Document 20-3 at 60]. “For temporal proximity
alone to establish prima facie causation, it is required to be ‘very close.”” Wallace v. Seton Family
of Hosps., No. 18-50448, 2019 WL 2484692, at *7 (5th Cir. June 13, 2019) (per curiam)
(unpublished) (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)). Given that
less than twenty-four hours passed between Traylor’s threat to go before the EEOC and his
firing, the Court concludes that he has established a prima facie case.
Once the plaintiff establishes the prima facie case, an employer must articulate a
legitimate nondiscriminatory reason for the adverse employment action. Outley v. Luke ¢>
Assocs, Ine., 840 F.3d 212, 219 (5th Cir. 2016). If the employer does so, the burden shifts back
to the employee to show pretext by “produc[ing] evidence that could lead a reasonable fact-
finder to conclude that ‘the adverse [employment] action would not have occurred ‘but for’
the employee’s decision to engage in an activity protected by Title VII.” A/khawaldeh v. Dow
Chem. Co., 851 F.3d 422, 427 (5th Cir. 2017) (quoting Fezst, 730 F.3d at 454). The cat’s paw
theory modifies this element slightly by requiring an employee to “produce sufficient evidence
that (1) his [co-workers or supervisors], motivated by retaliatory animus, took acts intended to

cause an adverse employment action; and (2) those acts were a but-for cause of” that action.
Zamora, 798 F.3d at 333. In order to establish this causation, the supervisor’s ot co-worker’s

25

“influence with the decisionmaker [must] be strong enough to actually cause the adverse
employment action.” Id. at 332.
Southern has articulated a legitimate reason for terminating Traylor: “he was not
learning at an acceptable pace and did not exhibit the level of skill, responsibility[,] and
independence necessary to believe that he would be able to successfully fulfill the duties of a
night forklift operator.” [Record Document 20-5 at 3]. Hence, Traylor must produce summary
judgment evidence that Wells took some act designed to get him fired and that that act actually
caused Kral to fire him. See Zamora, 798 F.3d at 333. The record contains no evidence of such

an action aftet Traylor made his threat to go to the EEOC. Similarly, the record contains no
evidence that Wells had any special influence over Kral and his decisions. This leaves Traylor
to rely solely on temporal proximity, and proximity alone cannot establish pretext. Burton, 798
F.3d at 240 (quoting Boyd v. State Farm Ins. Cos., 158 F.3d 326, 330 (5th Cir. 1998)). Defendants’
motion must be granted.
IV. Conclusion
For the reasons above, Traylor has failed to carry his burden to produce evidence
creating a genuine dispute of material fact that would necessitate a trial. As a result,
Defendants’ motion for summary judgment [Record Document 20] is GRANTED, and
Traylot’s claims are DISMISSED WITH PREJUDICE.
A judgment consistent with this opinion will issue separately.
THUS DONE AND SIGNED in Shreveport, Louisiana, this lol day of
K yep , 2019. Lo
ELIZABETH OOTE
UNITED STATES CT JUDGE
26

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10193117. Public record. Not legal advice.